Arbitrary Detention Powers and the War on Journalism

This post originally appeared on Law is War. Re-posted with Author’s permission. This post should serve as a good follow-up to Centerleft’s previous post, “Journalism on Life Support?”, and provides great insight on the actual law used to detain David Miranda.

“At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00.”

The 28-year-old man in question was David Miranda, partner of Glenn Greenwald, the Guardian journalist who along with Edward Snowden exposed to the world the horrifying extent of the NSA and GCHQ’s unlawful spying on the internet. Miranda was passing through London on his way to Rio de Janeiro, where he lives with Greenwald. He was held for nine hours – the maximum time allowed – and had a number of electronic items including a laptop and USB devices confiscated – before being released without charge.

The detention has been condemned by journalists and politicians alike, including Tom Watson andKeith Vaz, as well as Amnesty International. Whilst we do not yet know all the facts and why Miranda specifically was targeted, it appears rather too obvious that he was detained simply due to his association with Greenwald, who the US and UK intelligence services undoubtedly view with the utmost contempt.

This appears to be nothing more than an act of intimidation – more typical of authoritarian regimes such as Russia or Iran – and indicates a new low for the British Government in its disregard for human rights. The remit of the ‘war on terror’ now appears to have been significantly widened; This shameless act of intimidation is a declaration of war on journalism and those who seek to expose wrongdoing by the State.

Legal Framework

Miranda was detained under Schedule 7 of the Terrorism Act 2000, which confers wide powers of detention and search at airports, ports and border areas.

Crucially, these powers create a situation which is distinct from an arrest and questioning at a police station, thereby sidestepping the safeguards which would usually be provided to a suspect by the Police and Criminal Evidence Act 1984 (PACE)). Therefore detainees are not entitled to have access to a lawyer, or even any communication with any other person.

s.18(1) makes it an offence to ‘wilfully fail[ing] to comply’ with any questioning or searching, denying detainees even the right to silence which they would otherwise have at a police station.

Since it is not technically an ‘arrest’, the powers can be used not just by police but also by immigration and customs officials. Incredibly, the provisions are so widely drafted that the officials need not even suspect that the detainee is a terrorist. s.2(4) provides that:

“An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).”

s.40(1)(b) Gives the definition of “terrorist” as a person who:

“is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

This essentially creates a catch-all provision in which absolutely anybody can be detained for any reason whatsoever. In fact this is not unique to Schedule 7. The notorious s.44 Terrorism Act 2000conferred a power to stop and search without suspicion, and was declared unlawful in 2010 the case ofGillan and Quinton v UK for being too widely drafted and open to abuse. Stop and searches under s.44 have since been suspended – but not yet repealed completely.

A consultation (pdf) on Schedule 7 was carried out in late 2012 by the Home Office. 64% of respondents believed that the powers are “unfair, too wide ranging and should be curtailed.” 71% believed that that maximum period of questioning should be reduced, with 49% stating that this should be limited to just 1 hour. The responses overwhelmingly asserted a lack of confidence in the Schedule 7 powers and the way in which they are used.

Extraordinary Abuse of Power? Or Inevitability?

Today Yvette Cooper MP called for an investigation into whether the powers were “misused” in order to detain Miranda. Keith Vaz has indicated that he is writing to the police to find out what happened, describing the events as “extraordinary”. However human rights groups such as Liberty have been campaigning against Schedule 7 for years, pointing out that the powers are routinely misused.

I would argue that when laws are deliberately drafted so widely, incidents like this are inevitable. In that sense, the laws are functioning exactly as they were intended. A response from West Yorkshire Police to the 2012 consultation is particularly revealing:

“ Schedule 7 is critical to protecting national security and the ‘no suspicion’ element is vitally important. We believe the introduction of a reasonable suspicion test could limit the capability to detect and prevent individuals of interest passing through the UK border.”

This isn’t just some loophole which was overlooked in the drafting of the legislation; the security and intelligence services actually want the laws to be drafted in this open-ended manner, so that they can be applied to anyone, even if they have no reason to suspect that person has anything at all to do with terrorism.

In their press release today Liberty have pointed out that they currently have a case pending in the European Court of Human Rights which seeks to challenge the use of Schedule 7. The claim is due to be heard in September and whilst the s.44 ruling gives some cause for optimism, it is unfortunate that citizens have to undergo the lengthy and expensive process of taking a claim all the way to Strasbourg in order to assert their rights.

Sooner or later legislators will have to take the hint and start drafting laws which are proportionate and specific, rather than simply handing over arbitrary power to the police and security agencies.